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Exciting New Alternatives For Claims Resolution

June 15, 2016

Resolving commercial and construction disputes is expensive. According to one source, 98% of commercial disputes are resolved prior to trial or arbitration. However, most are not resolved until the parties have spent an enormous amount of time, energy, and money on discovery and motions. Even worse, the parties are usually unable to continue a working relationship after this warfare. Fortunately, there are alternatives — and they’re designed just to avoid these high costs and damaged relationships. Meet your alternatives: Guided Choice Mediation and Civil Collaborative Law. Two very different processes with the same goal: early, cost-effective dispute resolution. Civil Collaborative Law Collaborative Law requires each party to engage counsel trained in the process who commit to withdraw from the representation it cannot be resolved through the collaborative process. The collaborative lawyers to work together to overcome the obstacles to resolution, such as the need for information sharing without formal discovery. The

Can Arbitration Be Saved?

March 2, 2016

I preface this post with the disclosure that in my practice I serve both as an arbitrator — AAA administered and privately administered — and as an advocate in arbitration. In talking to lawyers throughout North Carolina, I hear the same statement over and over again: I would never advise my client to opt for arbitration over litigation. Why is that? Arbitration promises less expensive, speedier resolution to sometimes complex disputes. So why are lawyers advising their clients against it? Most complain that arbitration ends up being more expensive and often fails in its promise to expedite the process. These are both dangers that I believe can be remedied by the parties and an arbitrator or panel that is willing to make pre-hearing rulings that limit the scope of discovery and time to trial. Most arbitrators that I have appeared before or served with recognize this problem and have tightened

The Mediator’s Role In Positional Bargaining, Part 1

September 2, 2015

In spite of an acknowledged preference for interest-based “principled” negotiation, I acknowledged in my previous post that every civil mediation eventually becomes a positional battle. This is largely because virtually every civil litigation is resolved based upon an exchange of money and litigation combatants are rarely seeking to preserve a long-term relationship after resolution. If, in fact, negotiations in mediation become an exchange of offers and demands that (hopefully) are moving toward each other, what is the value added by a mediator? Can’t the parties simply exchange these numbers without the benefit of mediation? As a practicing litigator and mediator, the theoretical answer may be yes but in practice negotiations rarely progress without an active, neutral intermediary. Given the practical reality, how does mediation and a good mediator affect the dynamic so profoundly? In my experience, the primary value of mediation is that it facilitates the flow of information. We

Is Positional Bargaining Unavoidable?

July 30, 2015

One of the primary tenets of Roger Fisher and William Ury’s book “Getting to Yes” is that negotiations should focus on interests not positions, i.e., avoid positional bargaining. Positional bargaining takes place when each side takes a position, argues for that position, and reluctantly makes concessions from the opening position. Fisher & Ury instead contend that wiser and more efficient agreements are reached when the parties identify their underlying interests and not bargain based upon positions. Although Fisher & Ury are undoubtedly right, by the time most civil disputes get to mediation, it can be difficult to see the underlying interests because the positions have become so entrenched. In many cases the parties cannot identify their own underlying interests because they have focused on the the position for so long. In addition, even though the “principled negotiation” methods developed by the Harvard Negotiation Project and described in Getting to Yes

Are You Competitive or Cooperative?

April 23, 2015

As a 49ers fan I have been intrigued by stories about the former head coach, Jim Harbaugh. His brother, Ravens coach John Harbaugh, tells the story of how as a Little League baseball player Jim threw high and tight to a female batter on the other team. Apparently this caused some stir but Jim unapologetically explains that he had to because she was crowding the plate. For him the episode was simply a matter of competing to win. From the stories about great athletes it seems that many (maybe all) never stop competing. Everything is a competition. The point is that some people are more naturally competitive than others. In his negotiation skills course, Pepperdine Law School Professor Peter Robinson explained that some peoples’ natural instincts are to be competitive and others are naturally more cooperative. According to Robinson, neither is necessarily better than the other but recognizing our own

New AAA Rules for Fixed Time & Cost Construction Arbitration

August 4, 2014

The American Arbitration Association recently announced new streamlined rules for arbitration specifically designed for the construction industry. AAA believes that the new procedures are most appropriate in cases involving discrete issues that require limited document exchange or other discovery. The Rules definitely anticipate the parties cooperating at a level that is sometimes difficult to achieve in practice. The Rules are available on AAA’s website or downloadable on this site. Under the Supplementary Rules, AAA’s fees, arbitrator compensation, and time to hearing are all fixed based upon the value of the larger of the claim or any counterclaim. With the new rules Parties can generally calculate the cost and time from claim submission to award. AAA fees are fixed and the arbitrator’s fees are capped though there is some flexibility built in, e.g., if the arbitrator is required to resolve disputes, make a site visit, or review post-hearing briefs. In general

Amazing Face Reading

January 12, 2014

At a recent meeting of a trade group, the lunch time speaker was Mac Fulfer, a lawyer and professional face reader. So what is a face reader and why am I talking about it in a blog about negotiation skills. Mr. Fulfer contends that there are about 150 facial characteristics that can be read to learn useful insights about a person. Before you scoff at this as a simple parlor trick, I spoke to nearly a dozen people who had been “read” by Mr. Fulfer and all were amazed at how much he knew about their personality and how they approach problems or projects or their careers etc. I had my face read and am unable to dismiss this system as a gimmick. So why should a mediator or negotiator care? Without training I do not know how useful learning to read faces could be in face to face negotiations

Getting to Yes: Focus on Interests Not Positions

December 12, 2013

By far the most often quoted tenet of “the Method” is to avoid positional bargaining and instead focus on the underlying interests of the opposite sides. Fisher & Ury illustrate their point with the story of two people in a library arguing over whether a window should be open or closed. The opposing positions are open on the one hand and closed on the other. Hearing the argument the librarian comes over and learns that one party wants the window open for the fresh air and the other wants it closed to avoid the draft. Both people’s interests are satisfied when the librarian opens a different window. The illustration is useful and the point obvious once it is pointed out to us but how often are interests easily ascertained and separated from the stated positions. Fisher & Ury’s example also illustrates the point that to reach an agreement it is

Getting to Yes: Separate the People from the Problem

October 22, 2013

The first tenet of what Fisher & Ury call “The Method” is to separate the people from the problem. Although I think I understood their point when I first read the book, over time what stuck with me was the title not the underlying principal. As an advocate and mediator dealing primarily with business disputes, it is tempting to try and simplify the negotiation by trying to convince the parties that they should put aside the emotional component and focus on the cost-benefit of settlement as opposed to the BATNA (Best Alternative To a Negotiated Agreement). When we do this we may speed negotiations toward resolution but in many cases we only speed the case to impasse. “Getting to Yes” contends that every negotiator has two separate kinds of interests that must be addressed in the negotiation: 1) interest in the substance and 2) interest in the relationship. The point

Back to the Basics

September 22, 2013

I have recently been reading a number of relatively new books with claims of a revolutionary new way to approach negotiation. Without exception and without naming names, each new source has been insightful and a new perspective on the negotiation process that every one of us is involved in every day. Almost without exception, however, each new source compares itself to the classic negotiation manual “Getting to Yes,” first published in 1981. I first read “Getting to Yes” 10-12 years ago after taking the mediator training course from Bob Beason & Rene Ellis (then part of the Duke Private Adjudication Center). I learned a lot from the book but since then it has sat on a bookshelf and then in a box in my basement. In order to fully appreciate the new material I will be reviewing here in the next few months, I thought it a good idea to